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2019 DIGILAW 1100 (GAU)

Mahesh Sharma v. Maskara Tea Estate

2019-09-25

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. N Dutta, learned senior counsel, assisted by Mr. B Dutta, learned counsel for the appellant. Also heard Mr. GN Sahewalla, learned senior counsel, assisted by Ms. S Katakey, learned counsel for the respondent. 2. The appellant and the respondent entered into a memorandum of understanding (for short, MOU) dated 22.02.2019 as per which the Maskara Tea Estate was required to be handed over to the appellant for a period from 01.01.2019 to 31.12.2010. The agreement was that upon the tea estate being handed over, it would be operated by the appellant and in lieu thereof certain amounts as stated in the memorandum of appeal would be paid by the appellant to the respondent from time to time. The schedule to the MOU also provided the detail of the properties of the tea factory which were required to be handed over and Sl.No.3 thereof provided that two complete sets of New Rotor Van, CTC, Ghoogy, Quality Dryer in the factory would be provided. 3. The appellant preferred a Petition under Section 9 of the Arbitration and Conciliation Act,1996 before the learned District Judge, Sivasagar inter alia, praying that the respondents be restricted from interfering with the operation of the tea garden by the appellant. One of the contentions raised by the appellant before the learned District Judge in the Section 9 proceeding was that instead of two complete sets New Rotor Van, CTC, Ghoogy, Quality Dryer, only one complete was provided which was in operational condition and because of that there was adverse impact on the production capability of the appellant. As because of such adverse impact, the appellant had defaulted in making certain payments. In deciding the Section 9 petition by the judgment and order dated 19.08.2019, the learned District Judge, Sivasagar arrived at its prima facie satisfaction that there were some default by the appellant in making the payment to the respondent as required under the MOU and accordingly in paragraph 16 of the judgment it was provided that it appeared to the Court that the appellant himself had violated the terms and conditions of the MOU and further that it is a settled law that the party which seeks equity must come with clean hands, but in the instant case the appellant had not approached the court with clean hands. Accordingly a view was taken that the appellant was disentitled to get any equitable relief under Section 9 of the Arbitration and Conciliation Act, 1996. 4. Without expressing any view on the prima facie satisfaction of the learned District Judge, what we have noticed is that the basis of the claim made by the appellant was that two complete sets of New Rotor Van, CTC, Ghoogy, Quality Dryer were not provided as required under the MOU and which according to the appellant was a violation of the terms and conditions of the MOU by the respondent and because of such violation, the production capacity of the appellant was adversely affected resulting in a default in making the payment. The learned Court had taken into consideration only the aspect of default in making the payment by the appellant without giving any consideration to the aspect raised by the appellant that the two complete sets of New Rotor Van, CTC, Ghoogy, Quality Dryer in a workable condition were not provided by the respondent. 5. Because of the infirmity in not considering the said aspect, we are of the view that the conclusion arrived at by the learned District Judge requires an interference. If a party raises the question of certain violation of the terms of the agreement by the other party as a result of which they had defaulted to an extent, it is the bounded duty of the Court to take into consideration the entire aspect of the matter and arrive at a conclusion and not merely notice the default part of the party and ignore the conduct of the other party in not complying with the entire terms and conditions of the agreement. 6. In such view of the matter, while interfering with the judgment and order dated 19.08.2019 in Misc.(Arb.) Case No.1/2019, we remand the matter back to the learned District Judge, Sivasagar for a fresh consideration by giving a due consideration to the contentions raised by both the parties and pass a reasoned order thereon. 7. The parties shall appear before the learned District Judge Sivasagar on 27.09.2019. Upon their appearance, the entire matter be decided within a period of 1(one) month thereafter. 8. 7. The parties shall appear before the learned District Judge Sivasagar on 27.09.2019. Upon their appearance, the entire matter be decided within a period of 1(one) month thereafter. 8. However, we make it clear that we have not made any observation on merit, the claims made by either of the parties and the learned District Judge shall arrive at its conclusion independent to any observation that have been made in this order. 9. In terms of the above, the appeal stands disposed of.